Documents considered by the Committee on 16 March 2011 - European Scrutiny Committee Contents

7 EU Enlargement: Romania and Bulgaria




COM(11) 80




COM(11) 81

Commission Report on progress in Romania under the Co-operation and Verification Regime

Commission Report on progress in Bulgaria under the Co-operation and Verification Regime

Legal base
Documents originated18 February 2011
Deposited in Parliament28 February 2011
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 10 March 2011
Previous Committee ReportNone; but see (31824) 12558/10 and (31825)

12562/10: HC 428-i (2010-11), chapter 65 (8 September 2010); (31436) 7947/10 and (31437)

7948/10: HC 5-xviii (2009-10), chapter 7 (7 April 2010); (30828) 12386/09 and (30829) 12388/09: HC 19-xxvi (2008-09), chapter 22 (10 September 2009); (30347) 6405/09 and (30348) 6407/09: HC 19-xvii (2008-09), chapter 8 (13 May 2009), HC 19-xiv (2008-09), chapter 6 (22 April 2009) and HC 19-xii (2008-09), chapter 3 (25 March 2009); also see (29876) 12177/08 and (29877) 12182/08 HC 16-xxix (2007-08), chapter 2 (10 September 2008); (29431) 6150/08 and (29432) 6161/08 HC 16-xiii (2007-08), chapter 15 (27 February 2008); (28754) 11491/07 and (28768) 11489/07 HC 41-xxxii (2006-07), chapter 11 (25 July 2007) and (27865) 13347/06: HC 34-xxxviii (2005-06) chapter 3 (18 October 2006)

To be discussed in Council21 March General Affairs Council
Committee's assessmentPolitically important
Committee's decisionCleared


7.1 The accession negotiations with Romania and Bulgaria were concluded in December 2004 and a Treaty of Accession was signed on 25 April 2005. The UK ratified the Treaty on 5 April 2006.

7.2 The Commission's October 2005 and May 2006 monitoring reports identified a number of areas where further improvements were needed in order to meet all membership requirements, and all of which went to the heart of a properly functioning governance system based on the effective implementation of laws by an accountable, independent and effective judiciary and bureaucracy. The Accession Treaty allowed for a delay until 2008, but only if the Commission recommended that either country was "manifestly unprepared" for membership. The Commission's final verdict was that both countries would be in a position to take on the responsibilities of membership by 2007.

7.3 There were, however, still significant shortcomings, particularly on JHA issues.[37] So, various post-accession measures were put in place, the most crucial being the Mechanism on Cooperation and Verification (CVM) — a process whereby, having set benchmarks on JHA issues, the Commission works closely with both governments on steps to meet them, and reports to the European Parliament and the Council, with the sanction of non-recognition of judicial decisions under mutual recognition arrangements if progress was insufficient.[38] Accession on 1 January 2007 was now essentially a fait accompli; however, given the range of outstanding issues and their implications for actual and aspiring candidates, the Commission's final verdict was debated in the European Standing Committee on 15 January 2007.[39]

7.4 Romania's benchmarks are:

—  Benchmark 1 — Reform of judicial process;

—  Benchmark 2 — Establishment of an integrity agency;

—  Benchmark 3 — Investigation of high level corruption;

—  Benchmark 4 — Corruption, in particular within local government.

7.5 Bulgaria's benchmarks are:

—  Benchmark 1 — Independence/ accountability of judicial system;

—  Benchmark 2 — Transparency/efficiency of judicial process;

—  Benchmark 3 — Reform of the judiciary;

—  Benchmark 4 — High level corruption;

—  Benchmark 5 — Corruption at borders and in local government;

—  Benchmark 6 — Organised crime.

7.6 The Commission monitors progress and writes reports every six months: interim reports at the start of the year and main reports at mid-year. The previous Committee's consideration of earlier reports is enumerated in the headnote, the most recent being the Commission's main report of July 2010.

7.7 These reports are thus the latest interim reports. As such, the Commission says, they provide a technical update on significant developments during the last six months in both countries, focussing on each country's response to the Commission's recommendations, and do not contain a full assessment on progress achieved. The July 2010 progress reports and their recommendations thus remain the point of reference for the assessment of progress against the benchmarks and the identification of the remaining challenges, with respect to which the Commission will provide its next assessment in summer 2011.


7.8 As noted in our most recent Report, [40] the Minister for Europe (Mr David Lidington) described the last full report on Romania as the most critical of any of those published since the mechanism began: disappointing overall performance, key shortcomings in political commitment to reform, especially on the part of the Romanian parliament and Recommendations continuing to include the need for structural adjustments of the judiciary and "thorough reform" of the disciplinary system, and further reforms against corruption, including in the field of public procurement.

7.9 In his Explanatory Memorandum of 10 March 2011, the Minister notes that during the last six months, Romania has responded in a constructive way to the Commission recommendations in the last full report. He highlights:

  • the Small Reform Law, which, he says, will speed up the judicial process;
  • the maintenance of the National Anti-corruption Directorate (DNA) track record for investigating high level corruption; and
  • adoption of an improved law to secure the functioning of the National Integrity Agency (ANI).

7.10 The Minister then summarises the situation under each benchmark as follows:

"Benchmark 1. Reform of judicial process. The Civil and Criminal Procedure Codes were adopted by parliament on 22 June and promulgated by the President on 30 June. However, further work is necessary before all four codes enter into force, including on the implementing laws which have been sent to parliament for debate. The report notes that progress on the recommendation to conduct an impact assessment for the four codes has been minimal. The "Small Reforms Law" to be debated by parliament should advance the implementation of some reforms included in the procedural codes. It should also progress the recommendation to streamline the procedure for appeals. Staffing of the judiciary remains a concern. Vacancies have reduced slightly but there are questions as to whether recently appointed magistrates who have not graduated through the National Institute of Magistracy (NIM) are as well prepared as NIM graduated colleagues. The response to the 2009 recommendations to transfer vacancies to higher priority areas has been mixed. There has been progress on structural reforms to maximise the efficiency of existing personnel. The report urges the review of the geographic distribution of personnel and the possibility of a certain level of specialisation of judges.

"The Superior Council of Magistracy (SCM) has taken some steps towards more transparency by publishing decisions online. However, concerns remain over transparency, objectivity and thoroughness of interviews to promote judges to the High Court of Cassation and Justice (HCCJ). Concerns also remain over the handling of disciplinary investigations and decisions reached by the SCM.

"Benchmark 2: Establishment of an integrity agency: On 14 April the Constitutional Court found substantial and significant parts of law 144/2007 on the National Integrity Agency (ANI) unconstitutional (although the conclusion was not unanimous). As a result, the government put forward a new law on the ANI, which was adopted on 12 May. This was widely criticised by practitioners and civil society, and the President subsequently decided not to promulgate the law. However, on 30 June, the Senate (the upper house of Romania's Parliament) adopted the law again with only minor amendments. As a result, the control of assets, a fundamental element in the ANI's original competence, has been lost. The ANI, which has had a good track record in directly taking cases of unjustified wealth to court, has now been deprived of this ability, having to refer them firstly to the tax authorities or prosecutors. This important deterrent and sanction for corruption has therefore been lost. The new law includes a host of other amendments which weaken the effectiveness of the ANI's legal framework. The report notes that up until the passing of the new law, the ANI had been able to consolidate its institutional base, consolidate improvements in staffing and its operational track record, and therefore notes that it is imperative that the new law is amended. The Commission's report is highly critical of the Senate's proposed law, saying that it "breaches commitments taken by Romania upon accession." The ANI had previously strengthened case management processes, including monitoring the timely follow up by judicial and disciplinary bodies of cases submitted.

"Benchmark 3: Investigation of high level corruption: The National Anti-corruption Directorate (DNA) has maintained its stable and convincing track record of investigations into allegations of high-level corruption and a significant number of cases were sent to court. Overall, encouraging conviction rates have been achieved. The courts have demonstrated an increasing tendency to apply more severe sentencing, including imprisonment, although this trend has not been followed through at the final judgement stage. Concerns remain regarding the length of the trial phase in high-level corruption cases. The recommendation to apply the procedure for allowing criminal investigations of parliamentarians has only partially been fulfilled. On the positive side, the co-operation between the DNA and other relevant institutions is considered to be effective and challenges to the constitutionality of the DNA's legislature have so far been rejected by the Constitutional Court. The report notes that additional in-service training courses on fighting corruption have been scheduled. The recommendation to allow the criminal court to resolve illegality exceptions and to limit the application of suspended sentences is also being addressed. Further work is needed on the individualisation of penalties for corruption.

"Benchmark 4: Further measures against corruption including in local government: Some steps have been taken to strengthen co-ordination of the National Anti-Corruption Strategy for Vulnerable Sectors and for Local Public Administration. This strategy is now in its final months. However, despite a few additional measures proposed, the enhanced co-ordination does not so far appear to have developed to the stage of delivering better identification of vulnerable activities or corruption risks, nor mitigating actions. The report also notes that the real impact of individual actions remain unclear, which makes it difficult to ascertain which measures are actually working or need further attention. Efforts have been made to step up prevention measures in certain sectors. In the wider public administration, the Central Unit of Public Administration Reform (CUPAR) of the Ministry of Administration and Interior (MAI) has developed a guide on simplification of procedures and facilitated external expertise to identify procedures for the simplification in several public agencies. The Ministry of Education, which has identified a systemic weaknesses arising from specific corruption cases, is procuring an information system aimed at reducing corruption in the diploma system. However, overall, prevention measures need to be intensified across public institutions. There is a need to strengthen co-operation between the Fraud Investigation Service of the police and prosecutors in fraud cases. MAI has secured financing for the National Integrity Agency to consolidate anti-corruption efforts, and steps by the General Prosecutor to tackle low and medium-level corruption are beginning to deliver results. Concerns remain on public procurement, where the report describes a number of weaknesses in practice and the institutional structure. Conflict of interest legislation is insufficient and complex. Competent authorities demonstrate only limited activity aimed at preventing and detecting conflict of interest."

7.11 Over the next six months, the report recommends that Romania should: focus on preparing for the implementation of the four codes; commission a comprehensive review on the functioning of the judicial system to ensure the speed, quality and consistency of the judicial process; and do more work on measures to strengthen anti-corruption policy.


7.12 The most recent full report on Bulgaria was, by contrast, much more positive, with the Commission noting the establishing of a strong reform momentum, a strong political will to achieve a deep and lasting reform of the judiciary, the adoption of important reforms of its penal procedures and the strengthening of the prosecution to deal with fraud and organised crime, with the latter being actively tackled for the first time since the inception of the CVM.

7.13 The Commission nonetheless concluded that report with a further 11 recommendations covering Reform of the Judiciary, the Fight against Organised Crime and the Fight against Corruption, and called for sustained commitment by Bulgaria, the Commission and other Member States.

7.14 In his Explanatory Memorandum, the Minister summarises developments over the last six months under each benchmark as follows:

"Benchmark 1: Independence/accountability of the Judicial system: In this period, the Bulgarian parliament has adopted important amendments to the Judicial Systems Act. Bulgaria has also taken steps to improve the efficiency of the pre-trial process by merging the Criminal Police Department with the Department of Pre-Trial Proceedings. It has also continued to tackle organised crime gangs through police raids and arrests. However, the report notes that these activities have led to few indictments.

"Benchmark 2: Transparency /efficiency of judicial process: In response to the Commission's recommendations, the Bulgarian Parliament adopted amendments to the Judicial System Act (JSA) which strengthens the role of the Supreme Judicial Council (SJC) by introducing provisions aimed at enhancing transparency and protecting against conflicts of interest in the SJC's decision making process. The report mentions that there has been public concern raised about the accountability and transparency of senior judicial appointments. The recent amendments to the JSA require absolute commitment by the SJC to guarantee the quality and independence of appointment.

"Benchmark 3: Reform of the Judiciary: The JSA introduced new procedures and powers for the appointment and appraisal of Magistrates and supplementary powers to evaluate the workload of the courts and introduced a separation between appraisals of prosecutor and judges and a decentralised appraisal system.

"Benchmark 4: High level corruption: Two important verdicts have been pronounced in cases related to high-level corruption cases against two former Ministers, during the last six months. The same period has also seen a number of acquittals in cases involving conflicts of interest, fraud and organised crime, which have been appealed by the prosecution in the public interest.

"Benchmark 5: Corruption at borders and in local government: The Bulgarian Customs Agency has continued its structural reform, which has seen an assessment of staffing, resulting in a number of redundancies as part the fight against internal corruption. It is important these reforms continue to strengthen the independence and efficiency of its investigations.

"Benchmark 6: Organised Crime: The Bulgarian Parliament recently adopted important legislation to establish a special criminal court and special prosecutor's office, which is expected to be operational by August this year. These new structures are designed to speed up the prosecution process and improve the celerity and consistency of organised crime cases. However, efforts need to be made across the judiciary to introduce improved professional practices with regard to economic and financial crime. Bulgaria has also drafted the Illegal Assets Forfeiture Act, and should now ensure that the final version includes 'non-conviction based confiscation'."

The Government's view

7.15 The Minister "fully endorses" these reports, which he says are "a fair and objective assessment of progress in both countries."

7.16 He notes that

"A rigorous, transparent and objective monitoring mechanism remains essential to support reform in Romania and Bulgaria, as well as to ensuring the integrity of EU enlargement policy."

7.17 The Minister also endorses the Commission's emphasis on the importance in both countries of there being a broad based consensus and political will to undertake these reforms and ensure they deliver tangible and lasting results.

7.18 The Minister then welcomes the findings that Romania has responded to the Commission's recommendations constructively and re-invigorated the reform process. He particularly welcomes the adoption of a revised law to secure the independent functioning of the National Integrity Agency (ANI). He then continues as follows:

"We consider that close cooperation between judicial and political actors, particularly Parliament, will be of continued importance to ensure that the momentum is maintained."

7.19 The Minister also supports the Commission's recommendations on where Romania should focus its efforts in the coming six months:

"Romania must prioritise the launch of an independent review of the judicial system to support the implementation of further measures to improve the effectiveness of the judicial process. Romania should also focus on the implementation of the new civil and criminal codes; reform of the disciplinary system for magistrates; improving the celerity of high-level corruption trials; and strengthening anti-corruption policy"

7.20 Turning to the report on Bulgaria, the Minister notes the finding that Bulgaria has maintained its commitment to continue to implement its judicial reform strategy:

"The Government welcomes this sustained focus on the reform process and particularly adoption of amendments to the Judicial System Act; amendments to the Law on Conflict of Interests; and continuing work on customs reform. Further actions need to be initiated to sustain this momentum, particularly relating to the reform of the judicial system and of the police. Bulgaria should focus on the adoption of an effective law on asset forfeiture and on improving the effectiveness of its judicial system in order to address the continuing low rate of convictions for corruption and organised crime."

7.21 The Minister then says that he continues to support Romania and Bulgaria in their efforts to deliver these essential reforms, both within the EU and bilaterally, and agrees with the Commission "that the mechanism should be regarded in its entirety rather than as individual benchmarks and that it must remain in place until all of the benchmarks have been met."

7.22 Finally, the Minister notes that these interim reports are not subject to Ministerial discussion and that he expects only brief Conclusions to be adopted at the 21 March General Affairs Council, welcoming the Commission's analysis and recommendations and encouraging Bulgaria and Romania to sustain their reform efforts over the coming months.


7.23 The Commission Reports, which we now clear, and the Minister's comments speak for themselves.

7.24 As the previous Committee noted on a number of previous occasions, the concern is not to conduct a post-mortem on Bulgaria and Romania's accession but, rather, to ensure that the lessons that emerge from it are incorporated into the way in which subsequent accessions are handled, and specifically that of Croatia. They recalled the Commission's earlier judgement that both Bulgaria and Romania needed to demonstrate three things:

—  "an autonomously functioning, stable judiciary, which is able to detect and sanction conflicts of interests, corruption and organised crime and preserve the rule of law";

—  "concrete cases of indictments, trials and convictions regarding high-level corruption and organised crime";

—  "the legal system is capable of implementing the laws in an independent and efficient way";

and took the view that Croatia should be able to demonstrate persuasively that it had reached this position before accession.

7.25 This was further rehearsed in our Report on the last full assessments of Romania's and Bulgaria's progress, when we noted that we endorsed our predecessor's position.[41] We accordingly look forward to hearing from the Minister about the Commission's latest progress report on Croatia.

7.26 For now, it is plain that both Romania and Bulgaria have yet to reach this position, four years after accession.

7.27 We now clear the documents.

37   For details, see previous Reports enumerated in the headnote to this chapter. Back

38   Commission Decisions 2006/928/EC and 2006/929/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Bulgaria and Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption and organised crime (OJ L 354, 14.12.2006, p. 56 and 58; see and Back

39   Stg Co Deb, European Standing Committee, 15 January 2007, cols. 3-28. Back

40   See (31824) 12558/10 and (31825) 12562/10: HC 428-i (2010-11), chapter 65 (8 September 2010). Back

41   Seeheadnote:(31824)12558/10and(31825)and12562/10:HC428-i(2010-11),chapter65(8September2010). Back

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Prepared 24 March 2011